Regime design and compliance: migration regime in Central America and Mexico. Part 1/2

In the literature, migration is still treated by liberal-democratic states as a policy issue, and it is focused on the “receiver” perspective (Marchetti, 2008). And migration policies have conventionally been considered as states exercising their sovereign right to regulate the entry of non-citizens into their territory. Here we aim to a comprehension of the regional migration regime design (soft law and hard law) and how these states comply with such a regime.

For this, we should differentiate between the border policy and the actual regional regime and it is here where the main question is posted.  Given the huge dimension that migration represents for Central America and Mexico, and given the huge restrictive body of law (mainly from Mexico and the U.S.), how to organize a formal migration regime and make all the involved parties to comply?

Currently, immigrants comprise 13 percent of the total U.S. population, and Latino immigrants make about 46 percent of the total immigrant population, according to the Census Bureau’s 2010 and 2011 American Community Survey. It is estimated that 28 percent of all immigrants in the U.S. are there illegally. And nearly half of the Mexican and Central American immigrants are there illegally (Camarota, 2012). Given the dimension that migration from Central America and Mexico to the United States has reached in the last three decades, it seems very much logical for the states involved to cooperate among them and constitute a regional migration regime, where not only the states, but also NGOs, IOs, and the civil society itself cooperate in this matter. According to Van Hear, a migration regime involves “the national and international body of law, regulations, institutions and policy dealing with movement of people” (1998). In addition, for Ghosh a migration regime encompasses “a set of shared objectives, a normative framework, and coordinated institutional arrangements” (Ghosh, 2005). 

In this sense, states agree to respect their borders, except when there exist treaties that regulate commerce and/or exchange of labor. Nevertheless, many workers do not respect these borders and trespass them forming communities and international migration networks, that in turn, help facilitate the process of migration making it uncontrollable, and this is why a formal migration regime is needed. This regime should be able to: a) establish the powers and obligations of states in controlling the arrival, stay and departure of non-citizens; b) areas of migration policy where states cooperate with each other; and c) to establish the rights and obligations of non-citizens (GCIM, 2005).

Many are the challenges of the existing migratory trends that a very well organized migration regime can help diminish: the growth of irregular migrants and the exploitation and human rights abuse towards them in their destination countries, brain drain, low integration of migrants in the host society, increasing xenophobia and racism and poor ratification of, and compliance with, international standards. According to the Universal Declaration of Human Rights, every person has the right to leave any country and the right to return to his or her home country. However, there is no corresponding right to enter, work or stay in a third country because there is no an international treaty under which states have surrendered this right (Wickramasekara, 2008). And it is this detail what makes the whole thing complicated.

The legal norms ruling international migration cannot be found in a single treaty. It is rather based on accepted customary law and various binding and non-binding global and regional instruments. We can see the interest of states and international organizations on the design of a migration regime that can actually find a solution to the issue. We can mention efforts like the Berne Initiative, the International Dialogue on Migration launched by the International Organization for Migration, the 2005 Multilateral Framework Labor Migration launched by the International Labour Organization, and the 2006 High-Level Dialogue on International Migration and Development by the UN. These four efforts have in common that they have produced important non-binding guidelines for a better migration management. But is it possible to create a migration regime that instead of creating guidelines as soft law created actual binding norms?

National regulations

Central America characterizes for an underdeveloped policy construction. In addition, the weakness of the legislative and judiciary systems altogether with issues of corruption, abuse, and incorrect application of the laws make it very difficult to conceal the law aspirations with what happens in reality.  For example, in the case of Guatemala, the current migration law was enacted in 1998 and it presents the general procedures for the entry and exit of nationals and foreigners, temporary and permanent residents in the country, and the detention and deportation of violators to their countries (República de Guatemala, “Ley de Migración”). Guatemalan migration law has been widely criticized because of its high levels of corruption and low protection of migrants’ rights (Alba and Castillo, 2012). People from Guatemala, El Salvador, Honduras and Nicaragua (the CA-4 countries) can move freely throughout those countries without a passport since 2004.

El Salvador, on the other hand, updated its current migration law in 2004, first enacted in 1958 (Agencia de la ONU para refugiados (ACNUR), “Ley de Micración, Decreto Legislativo No 2772, publicado el 23 de diciembre de 1958”), and is under the control of the Public Security and Justice Ministry and it establishes regulations for entry and exit of seasonal agricultural workers from other Central American countries. The authorities use the passenger information system to compare airline passenger lists against criminal records, and digitized passports are needed for air and land ports. As a result of this controls, 11,109 unauthorized individuals were prevented from entry (Ministerio de Justicia y Seguridad Pública, Memoria e Labores 2009/10 , San Salvador, Ministerio de Justicia y Seguridad Pública, 2011).

In the case of Honduras, their current immigration law was enacted in 2004 and the responsible for its execution is the Ministry of Justice and the Interior. It establishes limits on the permanent entrance of foreigners (UN Population Division) but the immigration agents have been reported to be very corruptible and people related to international criminal organizations have managed to obtain Honduran nationality in order to avoid prosecution in other countries (Bosworth, J. 2011. “Honduras: Organized Crime Gained Amid Political Crisis”, in Organized Crime in Central America: The Northern Triangle, eds. Arnson, C; Olson, E. Washington, DC: Woodrow Wilson International Center for Scholars). 

Dott.ssa Ana Figueroa